May 19, 2005

On C-Span2, the Senators are still pontificating about the filibuster. I just caught a bit of Senator Mikulsi: "When Thomas Jefferson and Alexander Hamilton sat around at the Constitutional Convention, they wanted..."

BZZZZT!

Thomas Jefferson was not at the Constitutional Convention.

Milkulski assures us the Framers were devoted to checks and balances. I turned it off at that point, but she must have found a way to say they loved checking things so much they'd certainly love any additional checks the members of Congress might think up to make it even harder to get anything done. I did get a chance, however, to hear how seamlessly the Senator transitioned from talking about the Constitution to talking about "tradition."

But the Democrats don't normally base their arguments on "tradition," do they?

Remember the gay marriage issue?

Ah, let's just pay attention to the issue of the day, and make whatever the hell kinds of arguments work for that, and we'll think of a different style of argument to suit other occasions.

Isn't that the way a judge who's out of the mainstream would behave?

Of course not! The judges whom the Democrats fear and label "out of the mainstream" are the ones who are most devoted to a neutral methodology, who can't be counted upon to continue the makeshift, pragmatic case law that reaches the outcomes the Democrats like.

40 comments:

This filibuster nuclear option is right at the top of the news today, and it's starting to get on my nerves. I'm not sure I want to do away with it or not, I read that Robert Byrd did the same thing. So, I'm not sure this isn't something that hasn't been done before anyways.

"Ah, let's just pay attention to the issue of the day, and make whatever the hell kinds of arguments work for that, and we'll think of a different style of argument to suit other occasions."

Rightly sarcastically paraphrased, I'd say.

My own view is that obstructionism isn't what I vote for, so I'd like this to be settled.

I heard Hatch (R-UT) on the radio, saying he wanted up or down votes-- once nominees "hit the floor," thus evading the matter of former Democratic Pres. judicial nominees whose names never got out of committee and, thus, any other forms of obstruction than the filibuster.

I'd like public discussion and a political solution to ending the abuse of filibuster.

Still more, I wish the posturing-- defined as offering, as some have, (only) half a good and rarely a consistent argument-- would also bring us to public discussion of judicial rulings. To me, offered arguments seem designed to produce the liberal or conservative results speakers want in a particular case. Only if we had useful discussion do I think most folks can have an informed view of what's at stake.

(For example, I think it's worked for elected officials to skulk around difficult issues by either or both leaving the heavy lifting to courts and complaining when they don't like the court's decision.)

Seeing as the Republicans were the majority, odds are that if the committee had decided against them, they would not have succeeded in a floor vote.

However, perhaps in the future, they should get floor votes so that they can be rejected outright.

Be that as it may, 100% of nominees made by Bill Clinton to Circuit Court seats during the first two years of his Presidency (when the Republicans were in the minority) were confirmed by the end of his first term. 82% of those he nominated during his second two years were eventually confirmed-- despite Republicans being in the majority for the rest of his term. 78% of those nominated in his third two years were eventually confirmed.

Setting aside the moral [in]consistency of Democrats for a moment, I would be curious to know your position on the constitutional question. As I understand it , Bill Frist is going to petition the president of Senate with the claim that the filibuster of a judicial nominee is unconstitutional. There will then be a vote requiring only a simple majority in order to declare it so.

Speaking as a consitutional scholar, what's your take? Is it constitutional or not? And to connect it to a few of your posts, do the motives of each side matter in that determination? Do the courts have any possible say in this, since it seems a matter of constitutional interpretation?

Two points: Santorum today compared Democrats to Hitler saying, "It's like Hitler saying, I've invaded Paris, how dare you invade Europe to get me."(close quote) I believe in the Hitler rule for debate: The first one to use the Nazi anology automatically loses.

But beyond that, what's your bottom line, Ann? What would a supreme court justice have to change in order for you to say, "Gee, I'm sorry Bush appointed this justice?"

For me it's Griswold. I want my daughter to have the option of birth control.

Well, Art, I don't know if Ann will answer your question, but answer this one: The only way Griswold can be overruled is if a state legislature votes to outlaw contraception. What if your daughter were part of the majority in such a state who wanted contraception outlawed? Would you want her voice silenced and her vote ignored?

And don't say that your daughter would never have such beliefs. Sometimes the fruit falls pretty far from the tree, philosophically and politically. Just ask Mark Tushnet.

Jim, There's some question (Powerline's analysis notwithstanding) about to whom and what AG Gonzales was referring when he made comments about TX dissenters and judicial activism. While left-leaning folks contend Gonzales clearly said she was an activist (which he didn't), on the right, folks are saying that Gonzales' phrase "would be judicial activism" obviously doesn't characterize the dissenters. That's not at all obvious. The conditional doesn't change that Gonzales was characterizing the dissent.

Meanwhile, I'm not that interested in what Gonzales said in this matter; and I have no objections to parental consent laws.

Art: What would a supreme court justice have to change in order for you to say, "Gee, I'm sorry Bush appointed this justice?" For me it's Griswold. I want my daughter to have the option of birth control.

Sean: The only way Griswold can be overruled is if a state legislature votes to outlaw contraception. What if your daughter were part of the majority in such a state who wanted contraception outlawed? Would you want her voice silenced and her vote ignored?

Sean, don't you understand that courts exist to create and enforce wise policies when state legislatures reject progressive ideals?

Paul: I haven't studied the matter in depth, but I don't see the constitutional problem with the filibuster. The Senate has the power to make its own rules of procedure. They may be foolish or anti-democratic or obstructionist rules, but that doesn't make them unconstitutional. I see this as a purely political battle, with the invocations of the Constitution -- from both sides -- being quite bogus. I find the constitutional pieties expressed quite ridiculous.

Art: I support the rule of law, not particular outcomes. Not everything is constitutional law, and the absence of a right to birth control wouldn't cause birth control to be illegal.

Knemon: I'm not especially liberal or conservative. I'm an observer of human nature and I'm trying to point out hypocrisy and bogus rhetoric. I'd like to help people become smarter and more aware of the manipulation that is going on, even as I'm also a great believer in the rule of law. I am a law professor.

Kathleen: I have not studied the work of these judges. I have no valid opinion on the subject of their credentials.

Ann: It is surprisingly difficult to find an unambiguous statement of what, precisely, the "nuclear option" is. A Washington Post article from last December described it as "a seldom-used, complicated and highly controversial parliamentary maneuver in which Republicans could seek a ruling from the chamber's presiding officer, presumably Vice President Cheney, that filibusters against judicial nominees are unconstitutional." Hence my belief that it was specifically a constitutional question. However, other articles imply that being unconstitutional is not a necessary condition for the rule to be considered "out of order." It sounds like you're right, then, that the Constitution is being used as a smoke-screen.

Kathleen b: I have studied Texas Supreme Court opinion, which includes work by Judge Owen (and Al Gonzales for that matter). My impression of her work is that it does reflect a substantially neutral methodology - if by that phrase you mean the judge in question reads a statue and tries to apply it as written, or if not able to do so, tries to construe it in a way that gives effect to the intent of the enacting body, and tries to construe it in a way that such statute is valid under any governing rules - all perfectly ordinary rule of construction.

Problem is, Ann, most of those Patricians don't have a clue of what went on in Philly during the Constitutional Convention.The Founders were trying to hammer out a "more perfect union." The Democratic Party hacks are trying to destroy it.

Seeing as the Republicans were the majority, odds are that if the committee had decided against them, they would not have succeeded in a floor vote.

Except, of course, that the Republicans then showed no deference to a President's selections, instead judging them based on ideological perceptions rather than generic fitness to the bench. Had Clinton's nominees been evaluated on the same standards that Republicans now ask to have applied to their nominees, we'd never be where we are right now.

On Owen: how naive does one have to be to believe that she has been selected for the Fifth Circuit for her ability to deliver "neutral" results, and not because it's believed she'll lean to the side of results that conservatives would favor?

Adam: Thanks for the clarification. I hope my point about "neutral methodology" is clear. I do think certain types of methodology, will tend to produce results favored by conservatives and threaten established case law that liberals care a lot about. It is very hard to attack these judges, because they seem to be acting in an appropriate, impressive manner. But you can see where the results will be and you don't like them. Then how do you attack that person?

The only way Griswold can be overruled is if a state legislature votes to outlaw contraception. What if your daughter were part of the majority in such a state who wanted contraception outlawed? Would you want her voice silenced and her vote ignored?This is a very scary statement to me. I don't care if 99% of people want contraception outlawed. I hope it was just playing devil's advocate. we could always try that old game of replacing contraception with Christianity or interracial marriage or purple shoes. and to me that comparison works because it is all about free will, responsibility, and privacy.

The Democratic Party hacks are trying to destroy it.Please. Bush got 95% of his judicial nominees confirmed. And the Dems are not the ones trying to pretend something they have used for decades is "unconsitutional" to ram the last 10 judges through becuase they can't otherwise.

The judges whom the Democrats fear and label "out of the mainstream" are the ones who are most devoted to a neutral methodologyI apologize Prof. Althouse, but I really understood this statement to be saying exactly that - Owens et al have a neutral methodology and that is why liberals/democrats oppose them.

yes it is splitting hairs. (1) because the Republicans got rid of those rules they had used to keep nominees in committee as soon as Bush came it. and (2) they have used it before - Judge Paez. plus, one can go back to the grand fillibuster of Justice Fortas from the Supreme Court.

The fact that they had all these procedural tricks to defeat Clinton (holds, blue slips) so that they didn't have to use a fillibuster (and have subsequently gotten rid of those now, as I said) does not make a good argument on their side to me.

That would be the same Fortas who shortly thereafter resigned in disgrace?

I think the "nuclear option" is a bad idea because when/if the Democrats have the WH & Senate again (could be a looong time, but you never know), every postmodern transnational "critical legal studies" impresario will be fair game.

I did NOT state that Judge Owen was selected because of a neutral legal methodology on her part. I didn't ask the President why he nominated her, so I can't state the reason for her nomination. My comment was only in response to Kathleen b suggesting that Judge Owen did not have a neutral methodology. As I'm sure you do as well, it is my preference not to have statements attributed to me that I clearly did not make.

Prof. Althouse rightly refused comment on Judge Owen's judicial philosophy becase the good professor stated that she had not read any of Judge Owen's work. It would do well of the rest of us to follow her example.

Heck, I haven't read anything written by Justice Brown, so in that spirit I won't comment on her work, but it sure is funny seeing all those Democrats bloviating about the unsuitability for Federal appellate court service of a black, single mother who went to law school at night and got herself elected to the California Supreme Court. Yay, Janice, whatever your judicial philosophy!

All the filibuster analysis is so much hooey anyway. If a majority of Senators wants to change the rules for advice and consent to judicial nominees, they are clearly empowered to do so under the Consitution. Whether that is a wise choice is between each Senator and his consitutents. They're all (well most of 'em anyway) adult politicians - they can weigh the value of changing the rules the risk of getting booted out of office.

Did you all know (I'm sure Prof. Althouse does) that Federal Judge Nixon didn't even get a full vote of the Senate in his impeachment trial? the Senate rule was that the recommendation of a committee was dispositive on the Judge's impeachment. That trial was held by the Supreme Court to be a constitutional exercise of the Sentate's power to try impeachement. So enough with discussing the filibuster on a constitutional or legal basis. This is all bare knuckles politics, get used to it.

it sure is funny seeing all those Democrats bloviating about the unsuitability for Federal appellate court service of a black, single mother who went to law school at night and got herself elected to the California Supreme Court.

Is this Queen for a Day or a lifetime judicial appointment? If I find someone who went to law school in the midnight-6am shift while working three jobs with two broken feet and astigatism, can we nominate her too?

I did NOT tout Justice Brown's biography per se as a qualification for a lifetime appointment. I only thought it funny that the Democrats think someone of her particular biography is unsuitable, for reasons that should be facially apparent.

Having said that, is faithful service on the highest court of the most populous, largest economy state in the union not at least SOME qualification for service on the Federal bench? Is mentioning such service not, in fact, "discussing the issues"? As a counter example on the liberal side, I would think Justice Breyer's service on the First Circuit was adquate qualification for the Supreme Court. Justice Souter's service on the New Hampshire Supreme Court was equally adequate qualification, and their nominations were rightly confirmed.

How do you know whether I'm conservative or not? Same comment to you, kingsley, as to adam: don't attribute opinions or statements to a person that he did not make.

Oh yeah, one more thing - I went to law school at night, while working full time during the day. Some of my classmates were similarly situated to Justice Brown, and my admiration for them as people is huge. If you haven't done the night school thing, it's really hard to appreciate what a chore it is. I can't even fathom what a single mother have had to deal with. And yeah, Priscilla Owen's and Al Gonzales's autographs are on my Texas law license - both as justices of the Texas Supreme Court.

Whoah there, Kingsley. No one on the right is saying that any Democratic senator should vote "yea" on any of these nominees - which is what you're saying the Republican majority should have done w/r/t Clinton's nominees - just that they shouldn't prevent such a vote from happening.

What is the quibble with these judges' legal reasoning? I ask in all honesty. I've read the oppo briefs and, gee, I'm still puzzled. I don't see how any of them are further from the mainstream than, say, Justice Ginsburg (confirmed 96-3!). Maybe you can help me out here?

In all honesty, were it not for 1995-2000, I don't think I'd have a real problem with any of them save Brown, who really do believe wants to move the law well past precedent in areas which I care about.

But for six years, a Democratic president was denied the right to have his nominees acted upon by a flurry of nonsensical maneuvers, and if 1-2 Republicans can block a nominee, why not 40+ Dems?

I'd like to return to a system where provocative thinkers from across the spectrum are able to serve on the federal bench, but I'll be damned if that's only going to have on one side.

How funny that you would bring up Justice Fortas' resignation Knemon:"If the GOP applied the same ethical tests to Priscilla Owen that its predecessors used to disqualify Abe Fortas in 1968, she'd have to withdraw her nomination" http://www.salon.com/opinion/conason/2005/05/20/owen_and_ethics/index.html